Scholey v. Demattos

Citations

• 18 Wash. 504
• 52 P. 242
• 1898 Wash. LEXIS 586

Syllabus

<p>PROMISSORY NOTES — ATTORNEY’S PEE — ALLOWABLE AS STIPULATED DAMAGES—PLEADING AND PROOF.</p> <p>Under Code Proe., § 803, providing for the allowance in a judgment on a promissory note or mortgage of the amount of attorney’s fee specially contracted in the instrument to be paid in ease of suit, the amount contracted for must be construed as stipulated damages to which the plaintiff is entitled, although the sum allowed may greatly exceed the value of the services rendered.</p> <p>In an action upon a note and mortgage to which the only defenses pleaded are a general denial and an allegation that the attorney’s fee claimed is excessive and unreasonable, evidence on the part of defendant is not admissible for the purpose of proving that the contract between plaintiff and his attorney for fees in such action is for a sum much smaller than the attorney’s fee provided for in the note and mortgage.</p> <p>The rule that in equity proceedings the pleadings may be considered as amended in accordance with the proof offered, cannot be invoked when it would work an injury to the other party by taking him by surprise and by compelling him to litigate an essential question concerning which he had had no notice.</p>